JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PENNINGTON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 85 CORAM : MARTIN CJ HEARD : 30 MARCH 2012 DELIVERED : 30 MARCH 2012 PUBLISHED : 11 APRIL 2012 FILE NO/S : CACR 67 of 2012 BETWEEN : RONALD LESLIE PENNINGTON Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : McKECHNIE J
File No : INS 94 of 2011
Catchwords:
Criminal law - Practice and procedure - Suppression orders - Likelihood of prejudice to future retrial - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 31A
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43 Result:
Application refused
Previous suppression orders made in CACR 67 of 2011 and INS 94 of 2011 discharged Category: B
Representation:
Counsel:
Applicant : Ms L B Black
Respondent : Mr S W O'Sullivan
Interested Parties : Mr A V McCarthy
Solicitors:
Applicant : Kate King Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Interested Parties : West Australian Newspaper Ltd
Channel Seven Perth Pty Ltd
Case(s) referred to in judgment(s):Rinehart v Welker [2011] NSWCA 403MARTIN CJ: (This judgment was delivered extemporaneously on 30 March 2012 and has been edited from the transcript.)
1 Ronald Leslie Pennington was tried on an indictment which alleged that he murdered Cariad Jean Anderson-Slater between 12 - 16 July 1992 at Woodlands, which is a suburb of Perth. A charge of manslaughter was included in the indictment as an alternative count. 2 Prior to the commencement of the trial, the prosecution applied for permission to lead propensity evidence and/or relationship evidence pursuant to s 31A of the Evidence Act 1906 (WA).
3 That application came before the judge, who was to be trial judge, on two occasions, the first being on 17 February 2012, and then again on 28 February 2012 after the defence had had the opportunity to file written submissions. On that occasion the trial judge ruled against the application and directed that the evidence not be admitted at trial.
4 On 17 February 2012 his Honour made an order suppressing the publication of the proceedings that he was hearing until further order, because of his apprehension that those proceedings, if reported, might prejudice the conduct of the trial which was due to start before him about four weeks later. That trial commenced and the suppression order covering the proceedings on 17 and 28 February was renewed until further order. In the result, Mr Pennington was convicted of manslaughter by verdict of the jury.
5 On 28 March 2012, shortly after that verdict was announced, counsel for Mr Pennington indicated his intention to appeal and sought an order from the trial judge continuing the suppression orders which he had made pending the outcome of that appeal. That application was refused but the suppression orders were extended until later that day to provide counsel with sufficient time to bring the matter before the Court of Appeal.
6 That opportunity was taken and an appeal was lodged against the decision of the trial judge to refuse to continue indefinitely the suppression orders that he had made in February. I will assume without being taken to decide that there is jurisdiction in this court to entertain an appeal of that kind, although I think there may be some doubt on that subject. In any event it is clear that there is jurisdiction in the Court of Appeal to entertain an appeal against conviction and the maintenance of a suppression order or orders of the kind made by the trial judge would be an incident of the court's powers in the management of that appeal. I do not think it is appropriate at this point in the proceedings to spend too much time worrying about the source and extent of jurisdiction. I think it is more appropriate to proceed to deal with the merits of the question of whether the suppression order should be maintained. I address that question in the exercise of the jurisdiction to make interim orders in an appeal conferred upon a single judge of appeal by r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA).
7 The starting point for the consideration of any question of that kind is the presumption of open justice, which is a very well-established and strong presumption. It has been referred to many times in the cases. A recent illustration of the court's adherence to the firmness of that presumption is found in the decision of the New South Wales Court of Appeal in Rinehart v Welker [2011] NSWCA 403, albeit that case was decided in a civil context.
8 The question therefore is whether there is any basis for departing from the strong and firmly established presumption that what occurs in our courts is open and transparent, there for all to see and there for all to report. The hypothesis upon which it is asserted that the suppression orders should be maintained is that there will be an appeal, and not just an appeal, but an expedited appeal. The reason for expedition is said to be the advanced age of Mr Pennington and the proposition that his capacity to instruct counsel may diminish if the appeal is delayed or any retrial following the appeal is delayed. So the first element of the hypothesis is that there will be not just an appeal but an expedited appeal.
9 The second element of the hypothesis is that the appeal is successful, with the result that a retrial is ordered.
10 Counsel for Mr Pennington accepts that, even on the most optimistic scenario, on the assumption that these hypotheses come to pass, the earliest that a retrial would take place is around six months from now. For my own part, I would think that to be a somewhat optimistic estimate. Of course, there are many imponderables within an estimate of that kind, but I think it is appropriate and indeed necessary for me to determine this application on the assumption that these hypotheses come to pass, because the possibility of them coming to pass cannot at this stage be excluded.
11 However, the scenario that I have outlined indicates that the issue before me is quite different to the issue which was before the trial judge for a number of reasons. The first is that the trial judge was confronted with a jury trial which was to commence in a few weeks, whereas in this case there is no question of any retrial occurring within that time frame.
12 Secondly, any jury empanelled to hear a retrial of this matter has been exposed to the significant publicity that attended Mr Pennington's conviction; so it is inevitable that that jury will receive a strong direction from any trial judge to exclude from consideration any material that they have heard prior to being empanelled, and any material that they might have heard or seen outside the evidence that is adduced in the trial.
13 The question that I must confront is whether there is reason to doubt that the jury are likely to follow that direction and abide by their oath to decide the case only on the evidence before them. That question is capable of being affected by the nature of the material that would be published if the suppression order was lifted. That was the reason why I was reluctant to make a decision on the day that the application was first brought, because it appeared to me to be necessary to evaluate the likely impact of the publications that would follow if the suppression order was lifted. If the material is particularly sensational and colourful, it would be much more likely that it would be memorable and still in the minds of a jury empanelled in, say, six months time, and perhaps so indelibly imprinted on those minds as to be incapable of exclusion from consideration, notwithstanding a direction to that effect given by the trial judge. If the material was of that character, then the risk of prejudice is significantly higher.
14 Counsel for Mr Pennington also makes the point that lifting the suppression order would result in reports of those proceedings very likely being recorded on the Internet and therefore accessible to jurors when empanelled if there is a trial in, say, six months time. It is now standard practice for judges in Western Australia to firmly and unequivocally direct jurors not to use the Internet to seek access to material relating to the matters that they are to try, and I proceed on the basis that a direction to that effect would be given to any jury empanelled to hear a retrial of this case.
15 When I come to evaluate the material that might be made available to the public if I were to lift the suppression orders, it is important that I limit my consideration to that which was said in open court on the two occasions the matter was listed before his Honour. Pursuant to directions that I made when the matter first came before me, I have seen the written material that was before his Honour on that occasion, but there is no suggestion that the lifting of any suppression orders by me would provide the media with access to that material.
16 Counsel for the two media outlets who appear before me today has been provided with that material, but on the basis of an undertaking to use it only for the purposes of these proceedings, and counsel informs me that he has not read that additional material and will be returning it to the instructing solicitors for the applicant at the conclusion of today's hearing. There is no reason to suppose that anything I do today would result in any publication of that additional material.
17 It is therefore necessary for me to assess the likely impact of publication of what was said in open court on the two occasions the matter was mentioned before his Honour. On those occasions, although reference was made to the written materials, it was at a level of generality that did not descend to the detail of the written materials, no doubt because the hearing was conducted on the assumption that the trial judge had carefully read the written material and was well aware of its contents.
18 References were made in the course of argument before the trial judge to the thrust of the propensity application, but only in the most general of terms and in terms which would make it clear to any reader that the events in question took place many years before the events giving rise to the charge against Mr Pennington. It is also appropriate for me to proceed upon the assumption that any press reporting following the lifting of the suppression orders would be fair and accurate. That gives rise to a number of considerations.
19 The first is that any fair and accurate report would identify to a reader or viewer that the application was made in respect of evidence that had not been led, so that the application was made on the basis of an hypothesis that evidence would be led to a particular effect. The evidence was not led because the application was refused and therefore the evidence was not tested in any way and the assertions made in court may or may not be accurate.
20 A fair and accurate report would also advise the reader or listener or viewer of the fact that the trial judge rejected the application on the basis of his conclusion that the evidence, even if led, and even if it established the propositions relied upon by the prosecution, would not assist the jury in their assessment of the guilt or innocence of Mr Pennington because of its irrelevance to those questions.
21 There was reference in the argument before the trial judge to the fact of a conviction which occurred in 1975 after a plea of guilty, which is of a different character, because the fact of the conviction is not in doubt. However, the fact of that conviction some 17 years prior to the events giving rise to the charge brought against Mr Pennington is unlikely to have an enduring or lasting impact upon readers of a fair and accurate report of that material, or at least an impact that would not be capable of being ameliorated by the usual directions given by a trial Judge in a case of this kind.
22 Having reviewed the transcript of the proceedings before his Honour, I conclude that a fair and accurate report of those proceedings would be most unlikely to have an impact on the readers or viewers or listeners of any report of those proceedings likely to produce such an indelible impression as to be incapable of exclusion from consideration if and when a jury is empanelled at some time in the future, having regard to the usual directions that would be given to that jury by an trial judge.
23 It seems to me that this is not a case in which the prejudice to the possible retrial of the accused is so great as to outweigh the firm and established presumption in favour of open justice. I will therefore discharge the suppression orders which I have made.